R v V NAUFAHU [2021] NZHC 1065

R v V NAUFAHU [2021] NZHC 1065 [13 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-004-3382[2021] NZHC 1065THE QUEENvVETEKINA NAUFAHUHearing: 13 May 2021Appearances: E J Smith for CrownR M Mansfield for DefendantJudgment: 13 May 2021SENTENCING REMARKS OF LANG JSolicitors:Crown Solicitor, Auckland[1] Mr Naufahu, you appear for sentence having pleaded guilty to charges ofparticipating in an organised criminal group,1 money laundering2 and being inpossession of the Class B controlled drug MDMA (ecstasy).3Facts[2] You pleaded guilty on the basis of an agreed summary of facts. This recordsthat in early 2018 the police commenced an investigation into the importation andsupply of controlled drugs and associated money laundering. Central to theinvestigation were the activities of your younger brother, Mr Pasilika Naufahu, whowas at all material times the President of the Comanchero Motorcycle Club in NewZealand. You were also a founder member of that organisation in New Zealand afterhaving been a member of it in Sydney. You followed your brother to New Zealandafter he was deported from Australia.[3] The police investigation uncovered a sophisticated money launderingoperation that utilised the services of a solicitor, Mr Andrew Simpson. Mr Simpsonprovided advice to your brother and other members of the organised criminal group asto how they could deposit large quantities of cash into his trust account withoutattracting the attention of the authorities. This involved multiple deposits of cash intoMr Simpson's trust account in sums of less than $10,000. The cash was derived fromunlawful criminal activity, most likely the sale of controlled drugs. Through thismeans a total sum of approximately $1.2 million in cash was deposited intoMr Simpson's trust account and was then disbursed in different ways to or for thebenefit of members of the organised criminal group. The Crown accepts there is noevidence you were directly or indirectly involved in the deposits of cash intoMr Simpson's trust account.[4] Mr Simpson also set up trusts for you and your brother. He then transferredfunds that had been deposited into his trust account into bank accounts opened by thetwo trusts. This enabled you to receive the sum of $70,000 that you put towards thepurchase of a luxury motor vehicle for the sum of $218,000. You therefore received1 Crimes Act 1961, s 98A. The maximum penalty is 10 years imprisonment.2 Section 243(2). The maximum penalty is seven years imprisonment.3 Misuse of Drugs Act 1975, ss 7(1)(a) and 2(b). The maximum penalty is 3 months imprisonment.the direct benefit of some of the funds derived from the activities of the organisedcriminal group. In addition, when the police searched your home in April 2019 theyfound the sum of $45,500 in cash. This, too, clearly came from the money launderingactivities of the group.[5] At the same time the police found 1,812 milligrams of powder and ten pinktablets, all of which contained MDMA. This led to the charge of being in possessionof a Class B controlled drug.Starting point[6] The first step in the sentencing process is to set a starting point that reflects theoverall culpability of your offending.[7] The Crown accepts your offending is less culpable than that of your co-defendants, Messrs Jerome Fonua and Tyson Daniels, who faced similar charges toyou. They were significantly higher in the Comanchero organisation than you andtherefore derived significantly greater financial benefits from the activities of theorganised criminal group. The Judge who sentenced Mr Daniels adopted a startingpoint of six years imprisonment on charges of participating in an organised criminalgroup and money laundering.4 I sentenced Mr Fonua and adopted a starting point inhis case of five years imprisonment on those charges.5[8] Having regard to your lesser involvement, the Crown suggests the startingpoint in your case should be between three years and three years six monthsimprisonment on the charges of participating in an organised criminal group andmoney laundering. It suggests a modest uplift to reflect the charge of being inpossession of MDMA.[9] Your counsel points out the overall culpability of your offending isconsiderably less than that of Messrs Fonua and Daniels. Mr Mansfield submits theappropriate range of starting point is between 12 and 18 months imprisonment. Hesays no uplift is required to reflect the charge of being in possession of MDMA.4 R v Daniels [2020] NZHC 275 at [29].5 R v Fonua [2020] NZHC 3107 at [16].[10] I accept that your offending resulted in you deriving significantly less directfinancial benefit than was the case for Mr Fonua and Mr Daniels. In total, you receivedthe sum of $115,500. This comprised the funds Mr Simpson deposited into your trust'sbank account together with the cash found at your home in April 2019. AsMr Mansfield points out, this is less than half the value of the benefits Mr Fonuareceived. However, I do not consider your culpability is to be assessed solely by thedirect financial benefit you received from the activities of the group. You have alwaysbeen extremely close to your brother and through that, and also through your status asa foundation member of the Comanchero organisation, I have no doubt you had fullknowledge of the activities of the organised criminal group. I am also satisfied beyondreasonable doubt, you shared fully in its aims and objectives. Taking these factorsinto account, I consider a starting point of two years six months imprisonment isappropriate to reflect your culpability on the charges of participating in an organisedcriminal group and money laundering.[11] I do not accept Mr Mansfield's submission that no uplift is required to reflectthe charge of being in possession of MDMA. Although it is relatively low-leveloffending of its type it was nevertheless a discrete and different type of offending tothat captured by the other charges. I therefore add an uplift of one month to reflectthat charge. This brings the sentence to one of two seven months imprisonment.Aggravating factors[12] You have a number of previous convictions in New Zealand but these are at alow level and are different in type to the present offending. You have convictions formore serious offending in Australia, but they are also in type from the present charges.I therefore accept the submission made by both counsel that no uplift is required toreflect your previous convictions.Mitigating factors[13] I have the benefit not only of the pre-sentence report but also a detailed reportprepared by Doctor James Cavney, a forensic psychiatrist. This sets out your familybackground and, in particular, the difficulties that appear to have arisen because yourfather was an illegal immigrant to New Zealand. Your family moved to Australia whenyou were just three years of age. You then lived in poverty for a considerable periodafter moving to that country. You also lived within a very stern family environment inwhich your father used physical violence as a preferred means of responding to anytransgressions by his children. Notwithstanding these unhappy features of your familylife you did not leave school until you were 18 years of age. You and your brotherthen held down a series of jobs, with one often finding the other employment.[14] You became involved with the Comanchero organisation in Sydney in 2009after your brother formed an allegiance to it whilst serving a sentence of imprisonment.The report suggests you saw involvement in the gang as a means of providing foryourself and your family financially rather than as a means of forming meaningfulfriendships with others as is often the case.[15] Dr Cavney concludes you felt an obligation to support your parents and familyfinancially and sought to be a source of pride to them to mitigate any conscious orunconscious sense of shame at being impoverished immigrants. Dr Cavney says yourattempts to earn money within accepted social and cultural norms proved to beinsufficient. This led you to enjoy the financial benefits that the Comancheroorganisation offered. When you moved to New Zealand you followed your brother'slead in becoming a member of the New Zealand chapter of the Comancheros at itsinception.[16] I accept that the factors identified in Dr Cavney's report are likely to haveplayed some role in your willingness to join the Comanchero organisation and this inturn led directly to the present offending. I am prepared to allow a discount of threemonths to reflect these factors.[17] I do not, however, accept you should receive a further discount to reflect thefact that you were required to return to New Zealand against your will and sufferedmaterially as a result. Unlike your brother, you were not deported from Australia. Youchose to return to New Zealand to show loyalty to, and to support, your brother. Yourwife also wished to return to New Zealand because she had family ties here. Thisdecision was always going to present difficulties for you and so it has proved.Ultimately, however, you chose to return here voluntarily when it was open to you toremain in Australia.[18] You are, however, entitled to a discount to reflect your guilty pleas even thoughyou entered these just two weeks before your trial was due to commence. I proposeto apply a discount of four months, or approximately 13 per cent, to reflect this factor.This level of discount is in line with that afforded to Mr Fonua, who pleaded guilty tothe charges against him at the same time as you entered your pleas.Sentence[19] On the charge of participating in an organised criminal group and moneylaundering you are sentenced to two years imprisonment. Those sentences are to beserved concurrently with each other. On the charge of being in possession of a Class Bcontrolled drug for supply, you are sentenced to imprisonment for one month. Thatsentence is to be served concurrently with the other two sentences. This means youare sentenced to an effective term of two years imprisonment.[20] Stand down.Lang J